The Second Circuit Protects The Right To Counsel And The Pre-Arrest Right To Remain SilentBy Michael Joseph on September 10, 2013

Our Westchester criminal defense lawyers continue to monitor the developments in Constitutional Law and Civil Rights law to protect our clients who are accused with crimes. In United States v. Okatan, which was decided on March 4, 2013, held that the accused’s civil rights were violated and that the government violated the Fifth Amendment when it used as substantive evidence of guilt his pre-arrest request for a lawyer and his refusal to answer questions without one. This is a correct analysis, even though it departs from the underlying rationale of the majority of the Supreme Court in its Salinas decision. In this civil right’s attorney’s opinion, the Second Circuit is correct as is the liberal wing of the Supreme Court and the Supreme Court’s majority is on the wrong side of the law and history.

The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself. The privilege “permits a person to refuse to answer questions, in formal or informal proceedings, where the answers might be used to incriminate him in future criminal proceedings. The Second Circuit recognized that it allows a person to express his desire to remain silent, or to remain silent until he has the assistance of an attorney, consequently, in order for the privilege to be given full effect, individuals must not be forced to choose between making potentially incriminating statements and being penalized for refusing to make them. The Second Circuit reinforced the basic Fifth Amendment principles that a prosecutor may not tender to the jury for its consideration the failure of the accused to testify as substantive evidence of guilt and that the Fifth Amendment forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.

The Second Circuit continued to recognize exceptions to this rule by recognizing the continued viability of Supreme Court’s prior decisions that permitted the government to impeach testimony concerning the defendant’s failure to turn himself into police immediately after killing a man, which at trial he claimed to have done in self-defense and cases where the Court held that the Fifth Amendment is not violated when a defendant who testifies in his own defense is impeached with his prior silence. This holding is premised on the principle that a defendant who takes the stand in his own behalf does so as any other witness subject to cross-examination impeaching his credibility, even if that cross-examination relies on evidence that might otherwise be inadmissible under the Fifth Amendment.

The Second Circuit recognized that a defendant successfully asserted the privilege when by telling an officer that he wants a lawyer and that the right to remain silent exists independently of the fact of arrest. The Second Circuit appears to be openly challenging the logic of the Supreme Court by recognizing that to sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. All I can say is good for the Second Circuit for continuing to follow the correct rule of law. The Second Circuit also recognized that even when an individual is not in custody, because of the unique role the lawyer plays in the adversary system of criminal justice in this country, a request for a lawyer in response to law enforcement questioning suffices to put an officer on notice that the individual means to invoke the privilege. The Second Circuit joined the First Circuit by holding that allowing a jury to infer guilt from a prearrest invocation of the privilege “ignores the teaching that the protection of the fifth amendment is not limited to those in custody or charged with a crime.